Too Much Seatime

by John Merriam, attorney-at-law

They'd been on the S/S Westward Venture for a long time--I never asked how long--going back and forth between Tacoma and Anchorage. After a while, the sense of adventure got lost and the two seamen started to feel like bus drivers on a regular route. After a longer while, it must have affected their thinking.

Latif, who later became my client, got into a fight with a shipmate, Abdul, as the Westward Venture was preparing to berth in Tacoma. The Tacoma Police and the Coast Guard met the vessel. Latif and Abdul were both fired and taken to St. Joseph's Hospital by ambulance. Latif retained me after the SIU (Seafarers Int'l Union) refused to pay close to $20,000 in medical bills resulting from the fight.

It all started over a videotape.

Latif was the Able Seaman on the day watch (8 to 5) doing deck maintenance. Abdul was the Steward Assistant (bedroom grunt for the officers) and messman.

After reviewing reports from the Tacoma Police Department and the Coast Guard investigator, I interviewed all the witnesses in the crew. It seemed that the altercation, starting over a videotape, came to a head in the crew lounge. Abdul slapped Latif across the face. Latif pulled out a ratchet for a socket-drive and started beating Abdul about the head. Abdul retreated to the galley and grabbed a 12-inch chef's knife from the Chief Cook. He stabbed Latif in the left abdomen, between his thigh and his groin. Others in the crew pulled them apart.

"That tape must have been some choice pornography to cause a fight?" I telephoned the Chief Cook at home during his vacation. I wanted to hear his version of the fight between Latif and Abdul. He told me everything happened so fast that he couldn't tell who did what to whom, when. The Chief Cook held Abdul back during the fight as he made thrusting motions at Latif with the chef's knife. The Chief Cook didn't even know Latif had been stabbed until later.

"No," he said. "I don't know what was on that video but it wasn't porn. I think it was a science fiction flick."

"Wow! It must have been a really good movie!"

Latif had his shipping privileges suspended by the SIU for six months as a result of the fight. Later, when he first came to see me, Latif held a fistful of dunning notices from collection agencies. It seemed the SIU medical plan paid his bills for a while. Then, five months after the fight, they sent Latif a letter accusing him of "gross misconduct" and refused further payment.

I did some quick research. According to Professor Schoenbaum: "Fighting may be deemed willful misconduct (for the shipowner to escape payment of maintenance and cure) when the seaman is deemed the aggressor." Admiralty and Maritime Law, S 6-31 (4th ed. 2004). "Who's the aggressor in this situation?" I wondered. I handed Latif a contingent-fee agreement and told him his case was a crap-shoot.

After my new client left, I called the Vice-President of Industrial Relations for the vessel manager, Interocean Ugland Management, back in New Jersey. I'd dealt with Bob on a few cases over the years. I tried to explain, to him that seamen had been beating the tar out of each other for centuries and that the maritime law took a liberal view of injuries from fighting. While Latif might be guilty of "gross misconduct" for purposes of SIU benefits, he wasn't necessarily guilty of "willful misconduct" under the general maritime law. I suggested that the shipowner might have an obligation to pick up Latif's medical bills.

Politely, and in so many words, the VP told me to go fly a kite.

In June 2004, not quite a year after the fight, I filed suit in federal court at Tacoma. I chose federal court over state court mostly because of the greater familiarity with the maritime law exhibited by federal judges. The "misconduct" question was going to be a close call and I didn't want it decided by a novice.

On the other hand, filing the case in state court could get Latif more maintenance. The SIU contract still pegs maintenance at $8 per day, a rate set during the Korean War. That ridiculous rate of sustenance is still enforced in federal trial courts in the Ninth Circuit. (Gardiner v. Sea-Land, 1986 AMC 1521, 786 F.2d 943 (1986), cert. denied, 479 U.S. 924.) The Washington State Supreme Court refused to follow the Ninth Circuit and ruled that a seaman is entitled to whatever amount of reasonable living expenses he can prove. (Lundborg v. Keystone, 1999 AMC 2635, 981 P.2d 854 (Wash. 1999)).

But Latif had recovered from his wound fairly quickly so there wasn't that much maintenance involved. The medical bills outstanding dwarfed any increase in the daily rate of maintenance. In the end, I let my client decide. Latif said he didn't give a damn about maintenance and didn't care if he got a dime; he just wanted the bills paid so collection agencies would quit hassling him.

The case was assigned to federal Judge Franklin Burgess.

I did some more research to try to figure out who the "aggressor" was because, apparently, the witnesses didn't know. The Law of Seamen (5th ed. 2003) states:

A seaman who starts a fight is entitled to maintenance, "where the other seaman responded with excessive and unreasonable force. If the employer, however, is unable to differentiate the injuries resulting as a response to the initial assault and the injuries that followed due to the excessive and unreasonable force, the employer is then responsible to pay maintenance and cure for all injuries inflicted." (Torres v. M/V Fuiono Fishing Vessel, 141 F.Supp.2d 1028, 2002 AMC 912 (Southern District, California 2001), affirmed on that issue by unpublished opinion, 30 Fed. Appx. 752 (9th Cir. 2002). Force and Norris, at S 26:74.)

If Judge Burgess couldn't decide who the "aggressor" was, and if he followed the Southern District of California, I had a shot at winning the case. My policy is not to take a contingent fee from recovery of medical bills if it would leave the seaman unable to pay his bills in full. I wondered, then, how I was going to get paid.

I started calling around to the various doctors and hospitals Latif owed money to. I left messages identifying myself and suggesting that I could help them recover Latif's bill if they retained me to represent their interests and paid me a portion of what was recovered.

Most of the medical providers didn't return my calls. For those that did, I told them that if I won the case, the amount of the outstanding balance would likely be paid directly to Latif. "My client is a merchant seaman," I explained. "When I hand him the money from a judgment or settlement, he can pay you, like he should, or he can go to a bar with his friends and have a party."

With one exception, all the medical providers who would even talk to me refused my offer. I got the feeling that they had an almost toxic reaction to the thought of giving money to a lawyer under any circumstances, even if they were helping themselves by doing so.

Luckily for me, the hospital that agreed to let me represent them was the one owed the overwhelming majority of Latif's debt--almost $14,000. In exchange for a promise of direct payment from the shipowner, MultiCare in Tacoma put in writing that they would pay me 1/3 of any payment received.

"Hey, Bob!" I called the VP for Industrial Relations again. "Did you read that case I sent you from a federal court in San Diego?" He mumbled obscenities about frivolous lawsuits and said he thought I had better things to do. "Now Bob, I don't want to default you so you'd best put someone on this case." More unhappy mumbling, this time about legal fees. "I don't do strike suits, Bob. You can pay my client or you can pay the Garvey, Schubert firm. My guess is that you'll be paying both, and maybe my fee as well. Or, you can just pay Latif's bills and be done with this case. If you keep the doctors happy, I'll forget about maintenance, attorney fees, prejudgment interest, etc. You've got a lot of experience dangling carrots in front of the noses of medical providers. I'll bet you could dicker down the medical bills quite a bit."

"David West will be appearing on this case," he told me. The conversation ended but I knew Bob was thinking about what I proposed.

Bob accepted my offer a few days later and the case settled. He paid negotiated amounts to all of Latif's medical providers. MultiCare sent me a check, after some prompting, for $4,500-plus. The other providers got a free ride.

I never heard what happened to Abdul. I don't know who, if anybody, paid his medical bills. Latif was very happy with the outcome of his case. I settled it quickly and advanced no costs. All he had to pay was the $150 court filing fee. (28 USC S 1916.) The last time I heard from him, he was on a different freighter carrying ordnance bound for Iraq.

John Merriam is a former merchant seaman, now a sole practitioner of law at Fishermen's Terminal in Seattle. His practice is restricted to the representation of plaintiffs on maritime wage and injury claims.